How Can the States Overrule Marbury v. Madison?

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Today we examine how Marbury v. Madison quietly transformed the American constitutional system by centralizing interpretive authority in the U.S. Supreme Court—an authority never explicitly granted by the Constitution or ratified by the people. It traces the way judicial review evolved into judicial supremacy through reinforcing cycles: legislators came to rely on courts to repair their work, presidents deferred to judicial interpretations, and the public gradually accepted the Court as the final arbiter of constitutional meaning. Historical examples—from Reconstruction to the New Deal to modern administrative governance—illustrate how this shift deepened over time, reshaping the balance among the branches and eroding the original federal design. The chapter concludes by arguing that the states, which created the Constitution and maintain their own judicial systems, can lawfully restore interpretive balance. By exercising their independent duty to interpret the Constitution directly, state supreme courts can reopen a long-suppressed constitutional dialogue and reassert the principle that consent—not precedent—is the true source of legitimacy in a republic.

In order to help restore balance to our constitutional system please take advantage of the following form letter to encourage your state Supreme Court to reclaim its authority for interpreting the Constitution.

Form Letter to Members of a State Supreme Court
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To The Honorable Justices of the [State] Supreme Court:

I am writing as a citizen of this state and as someone who takes seriously the shared constitutional responsibilities of every branch of government—state and federal. I recognize that you, like all judicial officers in the United States, have sworn an oath directly to the Constitution of the United States and not to any other institution’s interpretations of it.

For that reason, I respectfully urge the Court to consider, in appropriate cases, the full constitutional authority of state courts to interpret the federal Constitution independently. The Supremacy Clause makes the Constitution itself the supreme law of the land. It does not elevate federal judicial opinions above the considered judgment of state courts sworn to the same constitutional text.

State courts play an essential role in the federal system. They are not subordinate bodies but co-equal interpreters of the Constitution within their rightful jurisdiction. When a federal question arises, the citizens of this state benefit from a judiciary that exercises its independent judgment, guided by its oath and by the Constitution itself, rather than by any presumption that federal precedent is binding in all circumstances.

I write not in a spirit of confrontation, but in a spirit of constitutional fidelity. My hope is simply that this Court will give thoughtful attention to the interpretive authority entrusted to it by the people of this state, and to the role state courts may play in fostering a balanced, cooperative federalism that better reflects the structure of our constitutional order.

Thank you for your time, your service, and your dedication to the rule of law.